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As the Oyez Project summarizes, the high court held in the 1964 decision that “to sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.”
Following the introduction of Andrade’s bill, Floyd Abrams, a First Amendment lawyer, told the outlet Law & Crime that “it’s black-letter law that a state cannot constitutionally provide less protection in libel litigation than the First Amendment requires.”
“This text does just that, obviously intentionally,” said Abrams. “If Governor DeSantis, a Harvard Law graduate, thinks the statute is constitutional, he’s forgotten what he was taught. If he’s looking for a way to offer the Supreme Court a case in which it might reconsider settled law, who knows. But what’s clear is that it is today and tomorrow facially at odds with the First Amendment.”
The new bill was filed two weeks after DeSantis, a possible 2024 presidential candidate, held a roundtable purportedly aimed at spotlighting the “defamation practices” of legacy media outlets. While DeSantis has framed his campaign against defamation as an attempt to empower “everyday citizens” against false attacks, free speech advocates warned that, in reality, the governor and his right-wing allies in the Legislature are looking to silence criticism of elected officials like themselves.
“DeSantis continues to make clear his disdain for freedom of speech and the press and to prioritize censoring dissent over governing,” said Seth Stern, director of Advocacy for Freedom of the Press Foundation (FPF) and a First Amendment lawyer.
Andrade’s bill, Stern argued, “would do nothing for ordinary Floridians but would allow government officials and celebrities to harass and even bankrupt their critics with expensive litigation.”
“It would stifle investigative reporting by presuming any statements attributed to anonymous sources to be false despite that (or, given DeSantis’ ambitions, maybe because) confidential sources have literally brought down presidents in this country,” Stern added. “The Florida legislature should reject this political stunt and Floridians should not tolerate their governor’s experiments in authoritarianism in their name and at their expense. The U.S. Congress should safeguard the First Amendment by codifying Sullivan and ensuring that the press and public are protected from politically-motivated defamation lawsuits.”
“Unsurprisingly, it’s peddled as a bill to protect the little guy. Nothing is further from the truth. It’s a gift to the ruling class.”
The Florida House measure, just the latest broadside against free expression by the state GOP, specifically urges the U.S. Supreme Court to “reassess” Sullivan, an effort that media lawyer Matthew Schafer described as “part of the right’s world war on individual rights, equality, and democracy.” (The Supreme Court declined to hear a challenge to the 1964 ruling last year.)
“Unsurprisingly, it’s peddled as a bill to protect the little guy,” Schafer noted. “Nothing is further from the truth. It’s a gift to the ruling class.”
Andrade’s bill, which resembles a proposal drafted by DeSantis’ administration last year, outlines specific restrictions on who can and cannot be considered a “public figure” entitled to pursue defamation claims under the legislation.
The measure states that a person does not qualify as a public figure if their “fame or notoriety arises solely from” defending themselves against an accusation; “granting an interview on a specific topic”; “public employment, other than elected office or appointment by an elected official”; or “a video, an image, or a statement uploaded on the Internet that has reached a broad audience.”
In a column last week, The Washington Post‘s Erik Wemple cautioned that DeSantis’ attempts to target Sullivan could pose “a far greater threat to U.S. media” than former President Donald Trump’s ultimately empty pledge to “open up” libel laws.
During his roundtable event earlier this month, “DeSantis, an ace practitioner of GOP media-bashing rhetoric, showed why some critics view him as a more dangerous embodiment of Trump’s two-bit authoritarianism,” Wemple wrote.